Fairbanks v. Wood — 17 Wend. 329

Majority

p. 186

Fairbanks vs. Wood.^[1]

Headnote

The statute of limitations does not attach upon justice’s judgments rendered previous to the revised statutes taking effect, provided suits upon such judgments are brought within six years after the statute went into operation; and in the computation of time, the day upon which the statutes took effect, is excluded.

Error form the Jefferson common pleas. Fairbanks, on the first day of January, 1836, commenced a suit in a justice’s court against Wood, and

p. 187

declared on a judgment obtained by him in another justice’s court against Wood, on the sixth day of October 1826, for $39'83. The defendant pleaded the general issue and the statute of limitations. The justice rendered judgment for the plaintiff. The defendant appealed to the Jefferson common pleas, and on the trial in that court, after proof of the judgment, moved for a nonsuit, insisting, that by the revised statutes, a suit on a justice’s judgment, rendered before those statutes took effect, must be brought within six years after they went into operation, or the plaintiff is barred; and that those statutes having taken effect on the first day of January 1830, the commencement [330] of the suit on the 1st January, 1836, was too late. The court sustained the motion, and non-suited the plaintiff, who sued out a writ of error.

W. H. Shumway for the plaintiff in error.

B. Bagley for the defendant in error.

By the Court,

An action of debt upon a justice’s judgment was considered not within the old statute of limitations, and therefore might be commenced at any time within twenty years after the rendition of the judgment (14 Johns. R. 479; 16 id. 233). By the revised statutes', it is enacted, that, “ all actions upon judgments rendered in any court not being a court of record,” shall be commenced within six years next after the cause of action accrued, and not after (2 R. S. 295, art. 2; § 18). Two questions arise here: 1. Do the revised statutes apply to this case; and 2. If they do apply , is the plaintiff barred by lapse of time ?

It is clear that the revised statutes do not apply to this case. It is expressly declared, that the provisions of the first, second, third and fourth articles of the second title of the 4th chapter, shall not apply to any cases where the right of action shall have accrued before the time when the chapter takes effect as a law, “but the same shall remain subject to the laws now in force ” (2 R. S. 300, § 45; see also 10 Wendell. 278). The principle recognized in The People v. Supervisor of Columbia (10 id. 363), supposed by the defendant’s counsel to favor his client, is inapplicable here, on account of the provisions of §45, above referred to. The remarks of Chief Justice Savage, that the revised statutes apply the limitation to actions or causes of action, accruing or existing subsequent to their taking effect, and apply to existing demands, as if they had accrued at the time when the statute commenced its operation, were made in reference to the prospective operation of a statute. He was speaking of the enactment, whereby the same limitation was applied to the people as to individuals (2 R. S. 297, § 28), and which had not [331] before existed. Of the same character are the observations of the same learned judge, in Sayre v. Wisner (8 Wendell, 661). At all events, nothing can be more explicit than the terms of § 45, by which all cases, where the right of action had accrued before the time when the statute took effect, are declared to remain subject to the laws in force at the time of its enactment.

Even if the statute were deemed to apply to this caseas an existing demand when the statute went into operation according to what was said in the above cases, in 8 and 10 Wendell, I should be inclined to hold that the plaintiff was not barred by the lapse of time; that the day on which the revised statutes took effect, ought to be excluded in the calculation of the six years, and consequently that the statute had not attached at the time of the commencement of the suit (2 Cowen, 518, and Id. 606, note.)

Judgment reversed, and venire de novj.